THE QUEENvH (CA488/05)
[2006] NZCA 450
•22 August 2006
PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA488/05
THE QUEEN
v
H (CA488/05)
Hearing: 22 August 2006
Court: Chambers, Randerson and John Hansen JJ Counsel: M I Koya for Respondent
M A Corlett for Crown
Judgment: 4 September 2006 at 11 am
JUDGMENT OF THE COURT
The Solicitor-General’s application for leave to appeal is granted, but the
appeal is dismissed.
REASONS OF THE COURT
(Given by Randerson J)
R V H (CA488/05) CA CA488/05 4 September 2006
Introduction
[1] The Solicitor-General seeks leave to appeal against a sentence imposed by Judge Singh on 18 November 2005 at the District Court at Manukau. The respondent was convicted after trial in relation to three counts of sexual offending against two young girls who were the daughters of his then partner. In relation to the first complainant, he was convicted of one count of digital penetration of her genitalia and one count of sexual violation by rape. In respect of the second complainant, he was convicted of one representative count of indecent assault.
[2] On the lead count of sexual violation by rape, the Judge sentenced the respondent to a term of six and a half years imprisonment. On the count of unlawful sexual connection by digital penetration, he was sentenced to three years imprisonment and on the indecent assault count, to 15 months imprisonment. All terms were to be served concurrently.
The facts
[3] At the time of sentencing, the respondent was 54 years of age but the offending had occurred earlier between 1999 and 2001. It commenced when the respondent moved into the home of the complainant’s mother. At that time, the first complainant was aged nine and the second seven. On one occasion, when the first complainant was nine, the respondent came into her bedroom, put his hand down her underwear and inserted his finger into her vagina for a short period before leaving the room. On the second occasion when the first complainant’s mother was at work, the respondent got on top of her and inserted his penis into her genitalia.
[4] The Judge accepted that the penetration was minimal but sufficient to justify conviction for rape. The Judge also accepted that penetration occurred only for a short period of time and that the respondent desisted when the second complainant came into the room. The Judge was of the view that the offending in respect of the
first complainant was on the lower end of the scale. He added however that he did not wish to minimise the effect the offending had on the victim.
[5] In respect of the second complainant, the Judge was satisfied that during a period of three years when she was aged between seven and ten, the respondent touched her in the breast and genital area over her clothing on a number of occasions at two separate addresses. The complainant said that this had occurred “a lot of times” but there was no definition of the number of occasions when this happened.
The Judge’s approach to sentencing
[6] The Judge considered the aggravating factors to be the nature of the offending; the fact that there were two victims; the gross breach of trust given the relationship with the respondent as stepfather to the complainants; and the tender age and vulnerability of the victims. As to the effect on the victims, there was no victim impact report before the Court. The Judge concluded on his own assessment of the evidence that the victims suffered trauma resulting from the offending but he did not elaborate further.
[7] As to mitigating factors, the Judge noted that the respondent had not previously been before the courts and had an unblemished record prior to the current offending. He observed that the appellant still denied the charges and that no credit was available for a guilty plea. The Judge also took into account a number of references produced to the Court which spoke well of the respondent and noted that he had a supportive whanau, a number of whom were present in the court at the time of sentencing. He also referred to the respondent’s medical condition. The pre- sentence report had recorded the respondent’s advice that he had suffered three heart attacks resulting in heart by-pass surgery and that he was in receipt of an invalid’s benefit.
[8] After referring to R v A [1994] 2 NZLR 129, the Judge observed that the eight year starting point mentioned in that case for a contested rape was not necessarily the norm and that there might be features in the particular case justifying a lower starting point. The Judge considered that an appropriate starting point was
six years imprisonment given his finding that the rape charge was at the lower end of the scale. He then increased that figure to eight years to take into account the aggravating features identified and deducted 18 months for the mitigating factors to arrive at the lead sentence of six and a half years on the rape count.
Submissions
[9] Mr Corlett submitted for the Solicitor-General that the sentence of six and a half years imprisonment was manifestly inadequate and wrong in principle. In broad terms, Mr Corlett submitted that the starting point of six years was too low and that the discount given for the mitigating features was excessive. It was submitted that the Judge had made an error in approach in finding that the brevity and minimal penetration involved in the rape justified a reduction of two years from the recognised starting point of eight years. He submitted that, although not universally applied, there was a convincing line of authority in this Court to the effect that brevity and minimal penetration achieved during the rape of a young girl did not constitute mitigating features justifying a substantially lower starting point.
[10] To support that submission, Mr Corlett referred to R v Hawkins CA51/02
22 May 2002 at [7]; R v Kerr CA119/94 18 August 1994 at pp 2-3; and R v O’Neill CA440/94 15 March 1995 at pp 4-5. To the contrary, however, Mr Corlett noted the decision of this Court in R v A CA100/03, CA261/03 3 August 2004 at [38].
[11] Mr Corlett submitted that, having regard to the totality of the offending against the two complainants, a proper starting point would have been nine years before mitigating factors.
[12] As to the extent of the discount for mitigating factors, Mr Corlett submitted that it was “well established” that personal circumstances are only accorded limited weight in rape sentencing. There was scant evidence, he said, of the respondent’s medical condition or of the effect which imprisonment might have upon it. And he submitted that the weight to be given to personal circumstances (including previously good character) was lessened where the offending is repeated and regard is had to the deterrent purpose of sentencing for serious sexual offending.
[13] Mr Corlett submitted that no more than six months should have been allowed for mitigating factors and that the final sentence should have been eight and a half years on the rape count rather than the six and a half years imposed.
[14] Mr Koya submitted on the appellant’s behalf that the Judge was entitled to adopt a lower starting point than the term of eight years imprisonment identified in R v A (1994) and was entitled to conclude in the circumstances that the rape was less culpable than one involving full penetration and lasting for a long period of time. Mr Koya also submitted that the discount for mitigating factors was not excessive in the circumstances of the case and reminded us of the principles applicable on a Solicitor-General’s appeal: R v Donaldson (1997) 14 CRNZ 537 at 549.
Discussion
[15] R v A [1994] 2 NZLR 129 is not to be applied in a formulaic or rigid manner. It is worth repeating what this Court said at 132:
While eight years should be the starting point, it is not necessarily the norm. Regrettably there may be seriously aggravating features, as in the present case. The cases of Clark and Billam illustrate, non-exhaustively, what some of these may be. See also, for instance, gang rape cases and what was said and done about one of them in R v Misitea [1987] 2 NZLR 257. There, in a case of very bad gang rape, it was said by this Court at p 266 that, if persons shown to have been ringleaders had been convicted, sentences at or close to the then maximum of 14 years' imprisonment might very well have been appropriate. Under the new regime the maximum of 20 years would have to be considered.
On the other hand there may be features in a particular case justifying going below, possibly even well below, the eight-year starting point. Some such cases are listed in Billam and Clark. Another illustration, depending always on the particular circumstances, may sometimes occur when consent to intercourse is refused after a degree of consensual sexual stimulation. An extreme example is R v Brookes (1992) 14 Cr App R (S) 496, where a sentence of three years for rape was upheld on the basis that the accused was not aware of the refusal of consent until the act of intercourse had begun. The man's persistence in such a case is criminal but some allowance for the special facts may be made in sentencing.
The present judgment therefore signals an increase in the starting point for rape sentencing, and so probably in the average length of rape sentences, but it is not intended to fetter sentencing Judges in assessing the gravity of particular cases. In the end, almost everything turns on the facts of the
particular case. It is part of the judicial responsibility to weigh these. Generalisations are not likely to be of much assistance.
[16] This Court made it clear the eight year guideline was “not intended to fetter sentencing Judges in assessing the gravity of particular cases”. The need to have regard to the facts of the particular case and the judicial responsibility to weigh these was underscored. Judges are free to adopt higher or lower starting points depending on the circumstances.
[17] Having said that, the question is whether there was an error of approach by the Judge in reducing the starting point to six years having regard to the minimal penetration identified and the brevity of it. We would not wish to endorse in the case of sexual offending against young girls any general principle that a lower starting point is justified for minimal or brief penetration compared with full or longer penetration. The law provides that the act of rape is complete even upon a minimal degree of penetration. The statutory policy recognises that an act of sexual violation may well have a similar traumatic effect on the victim whether the act is of short or long duration and regardless of the extent of penetration. Depending on the circumstances, a particularly violent or prolonged act of sexual intercourse could justify an increased starting point.
[18] We are unable to discern any principled basis for the deduction which the sentencing Judge made in the present case. We accept the Crown’s submission that a starting point of nine years was required having regard to the totality of the offending which included, in addition to the rape, digital penetration on another occasion against the same complainant and a number of indecent assaults against the second complainant over a three year period.
[19] As to the deduction of 18 months for mitigating factors, while this may have been on the generous side, we consider it was at a level within the discretion of the sentencing Judge. We are not aware of any “well established” principle that personal circumstances are not to be given much weight in cases of sexual offending. To adopt that approach would be contrary to the provisions of the Sentencing Act 2002, particularly s 8(h) and (i) and s 9(2). In the present case, the Judge was faced with an offender with a previously unblemished record and who was highly spoken of by
a significant number of referees. As well, although no medical certificate was produced, the probation officer appears to have accepted the respondent’s statement about his health and the fact that he was on an invalid’s benefit. The Crown did not dispute these statements at sentencing. We observe that it is unlikely the respondent would have been granted an invalid’s benefit without proper medical certification. Although there was no evidence before the sentencing Judge about the effects of imprisonment on a man with the respondent’s health condition, it is reasonable to assume that his medical condition was such as to make his imprisonment a greater burden than others with good health. The extent to which that is so is difficult to assess on the material before us. The Judge was also entitled to give weight to the fact that the respondent had strong whanau support.
[20] On a purely mathematical basis, if 18 months were deducted from the starting point of nine years which we consider to be appropriate, the result would be a sentence of seven and a half years imprisonment. However, on an appeal by the Solicitor-General, care must be taken to ensure that this Court does not override the discretion of the sentencing Judge except in clear and compelling cases. While we consider that the Judge took a lenient approach, we are not taken to the point where we consider the sentence to be manifestly inadequate or wrong in principle.
Result
[21] For these reasons, while we grant leave to appeal, we dismiss the appeal by the Solicitor-General against sentence.
Solicitors:
Crown Law Office, Wellington
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